UNITED STATES V. BRIGHTON RANCH CO.
UNITED STATES v. BRIGHTON RANOH CO. and another.
«(JiJrcuit Court, D. Nebraska. November 16, 1885.)
PtmLIC LANDS-FENCING FOR CATTLE RANCH-INJUNCTION.
The United 8tates have a right to an injunction in a court of equity to prevent the enclosing of public lands, and where the legal title remains in the government in cases of pre-emptors, it can protect those lands in the Slj.me manner; except where the pre-emptor has given express license to build a fence on his land. .
In Equity. This is a suit on behalf of the United States to obtain a mandatory injunction against the Brighton Ranch Company to compel it to remove a barbed-wire fence, 57 miles long, inclosing 52,000 acres of the public lands of the United States. The testimony disclosed that this fence stood partly on deeded lands, school lands, and lands entered under the homestead, pre-emption, and timber-culture laws of the United States. The testimony,further disclosed that the fence was erected on these entered lands with the permission of the settlers. Inside the fence were a large number of acres of vacant public lands. G. M. Lambertson, for complainant. J. M. Woolworth, for respondents. MILLER, Justice. I am of opinion that the United States is entitled to its injunction mandatory as to 80 much of the fence cQmplained of as exists, and prohibitory as to building any future fences, so far as either of them comes within the following principles: (1) .There exists no right in the defendants to build any fence on the lands of the United States. (2) All lands are for this purpose lands of the United States so long as the legal title remains in the United States. (3) It is the right of the United States and its duty to protect all such lands from this misuse in cases where there have been any kind of entries, 'Yhether of pre-emption, homestead, or private entry, though the purchase money be paid, so long as the legal title remains in the United States; except where these latter parties build their own fences, or give express license to others to do it. Inthese cases it holds the title in trnst, and can maintain this bill to remove the fence or prevent its erection. A decree should be entered based on these principles. v.25F.no.8-30
SCHUMACHER and another v. SCHWENCKE, Jr., and another.
(Oircuit Oourt, B. D. New York. November 17,1885.)
COPYRIGHT-PAINTING MADE BY ARTIST FROM DESIGN FURNISHED BY CoRPORATION-SIZE OF PAINTING.
A painting only seven by four and a half inches in size, owned by a corporation, painted by an artist employed by the corporation from a design made by its president from a wood-cut may be copyrighted by the corporation.
SAME-PAINTING SUSCEPTmLE OF BEING LITllOGRAPHED AND USED AS LABEL.
That such a painting could be readily lithographed and used as an advertising label will not affect the copyright.
SAME-INJUNCTION WHILE QUI TAM ACTION PENDING.
An injunction to l?revent infringement of a copyright may be granted, although a qui tam actIOn for the penalty allowed by law is pending
Motion for Preliminary Injunction. Augustus T. Gurlitz, for complainant. Louis G. Raegelter, for defendants. Can, J. The complainant is a corporation and files this bill for the sole purpose of obtaining an inj unction restraininR the defendants from infringing a copyl'ight granted to the complainant for a painting, of which it is the proprietor, called .. Telegra.m." The painting is about seven inches long by four and one-half wide. It represents upon a scroll the bead of a newsboy, having a number of papers upon his shoulder, and the waste end of a cigar in his month. On either side of the head foliage and telegraph poles are represented. That complainant has conformed to all the provisions of the copyright law is not denied. There is practically no dispute, also, as to the manner in which this painting was prodnced. The head was copied from a black wood-cut print of a painting by the Italian artist Eugene v. Blass. The wood-cut was owned by the complainant. The other features, the cigar, the hand, the newspapers, the red feather, the scroll. the telegraph poles and foliage were suggested and designed by Theodore Schumacher, the president of the complainant, himself an artist of respectable attainments. The picture, which is the result of the idea thus formed, was actually painted by one Charles Stecher, a resident of this country and an artist in the complainant's employ. It was, however, painted under the direction and supervision of Schumacher, for the complainant; was paid for by the complainant, and has at all times been in the possession of the complainant, and owned by it. The defendants have made and sold exact lithographic copies of this painting, so that there is no dispute upon the question of infringement. The complainant now moves for an injunction. The motion is opposed upon the following grounds:
First. The painting is intendl'd for a label, and is therefore not the subject of a copyright. Second. Thl' complainant was not the author or designer of the painting. It was copied by Stecher from the wood-cut referred to. Third. A qui tam action for the oenalty allowed by law is now pending.
SCHUMACHER V. SCHWENCKE.
The provisions of the statute, so far as it is necessary to refer to them for the purposes of this motion, are as follows:
"Sec. 4952. Any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of * * * a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, * * * shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same." "Sec. 4965. If any person, after the recording of the title of any map, * * * or of the description of any painting, * * * as prOVided by this chapter, shall, within the term limited, and without the consent of the proprietor of the copyright first ol.ltained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, pUblish, or import, either in whole or in part, or by varying the main design with intent to evade the law, or, knowing the same to be so printed, pUblished, or imported, shall sell or expose to sale any copy of such map or other article, as aforesaid, he shall forfeit," etc. "Sec. 4970. The circuit courts, and district courts having the jurisdiction of circuit courts, shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent till! violation of any right secured by the laws respecting copyrights, according to the course and principles of courts of equity, on such terms as the court may deem reasonable." "That in the construction of this act the words I engraving,' · cut,' and 'print' shall be applied only to pictorial illustrations, or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the patent-office." Act of June 18, 1874; Supp. Rev. St. p. 41.
It is contended by the defendants that the complainant's painting was designed as a label for cigar boxes. This, it is said, is evidenced by its size, and by the fact that copies appear to be advertised in complainant's catalogue of labels. 1.'hat lithographic copies are applicable to this purpose cannot be denied. They may also be used for many other purposes. The proof in this case discloses some of them. But the subject of the copyright is, in fact, a paintin,g, executed by an artist with pencil and brush, and can itself be used only as paintings are used. The fact that copiefl may be utilized for advertising purposes does not change the character of the original. If the painting itself is to be considered a label because copies may be so used, no master-piece would escape such desecration. It will hardly do to call the Sistine Madonna, or the Aurora, labels, because by the sacrilege of modern enterprise copies of Raphael's Cherubs or Guido's Goddess may be transferred to a blacking box or a perfumery bottle. Were it conceded that this painting was intended exclusively for a label, or as the first step in making a label, a much stronger cas.e for the defendants would be presented. But such is not the fact, and it is clear from the affidavits that it cannot be established by evidence. The contention that anything against the validity of the copyright is to be predicated of the size of the painting cannot be maintained. Some of the finest productions of modern artists, notably Meissoniet
and Meyer Von Bremen, are hardly larger, and counterfeits of them might easily be used in the decoration of cigar boxes. There is nothing to prevent a copyright for even a much smaller painting. The size is not material. The complainant is certainly the "proprietor" of the painting, even in the restricted and technical sense in which, according to some of the authodties, the word "proprietor" is used in the statute. The complainant's money paid for tbe painting; its artist colored it; its president designed it, his was the "originating, inventive, and master mind." The complainant owns the painting. Its title is derived directly from the author and designer. The head was no doubt suggested by the wood-cut print, but the same is true, to a great extent, of all figure painting. No artist would for a moment think of placing the face of Washington, for instance, upon his canvas without studying the best portraits of Washington wit.hin his reach. But there is enough of artistic merit in tile other parts of the painting to support a copyright. It certainly needed a much higher order of merit to produce the pleasing and suggestive combination presented in this painting-requiring, as it must, imagination and artistic geniusthan that required in placing a huma'll being in a graceful attitude before a camera; and yet there is no longer a doubt that a photograph may be protected by a copyright. Burrow-Giles Lithographic Co. v. Barony, 111 U. S. 53; S. C. 4 Sup. Ct. Rep. 279. If a photograph, then a colored photograph, and, a fortiori, a painting, even though the artist borrows his design largely from others; for it belongs to a much higher type of art. The fact that the artist Stecher executed Schumacher's design cannot defeat the copyright. The sculptor seldom touches the marble from which his statues are carved. The fact that the brush which embodied Schumacher's idea was held by another artist rather than by himself cannot be important in consideri,ng a question of this character. Regarding the third objection, it should be borne in mind that the bill prays only for an injunction. The action at law is designed to secure indemnity for the past; the injunction, protection for the future. Tbe copyright law seems to contemplate both remedies; and no reason is suggested why a party who seeks the first should be deprived of the second. The complainant has a painting which is concededly valuable. Time, money, and artistic skill were expended in its production. The defendants openly and boldly pirated it, and are now reaping the rewards that fairly belong to the complainant: They have the whole material universe from which to choose. They can make any design of their own, and be protected in its use; but the law will not permit them to appropriate the result of others ingenuity and skill, and profit by the wrong thus committed. The motion is granted.
UNITED ::iTATES V. STRICKLAND.
UNITED STATES V. STRICKLAND.
(OVrcuit Oourt, S. D. Georgia. _November 10,1885.)
CRIMINAL LAW-VIOLATION OF INTERNAL REVENUE LAws-INFORMATION FOR SELLING TOBACCO.
An affidavit stating that a party on trial" sold tobacco" will not support an information charging the accused with carrying on the business of a retail dealer in tobacco without paying the special tax.
Such an affidavit, to authorize an information, must conform substantially to the language of the statute alleged to be violated; certainly it must plainly distinguish the offense.
Violation of Section 3242, Rev. St. Lester eX Ravend, for defendant. S. A. Darnell, Dist. Atty., contra. SPEER, J. The prisoner is charged by information filed by the district attorney with the offense of carrying on the business of a dealer in manufactured tobacco, without paying the special tax as required by law. The information is based on an affidavit made before a commissioner of the court, in which affidavit it is stated that the prisoner "sold tobacco without paying the special tax," etc. A motion to the information is made for the reason that no offense is sufficiently stated in the affidavit on which the information is based. The power of the district attorney to file informations against the citizen should not be enlarged by a lax enforcement of the rules of prac. tice. The rule in this district has been always to require the affidavit which is the basis of the information, substantially to conform to the language of the statute alleged to have been violated. This rule is practical, intelligible, and reasonable. Certainly the affidavit should clearly distinguish the offense. Here the prisoner might be at a loss to understand, so far as the affidavit has informed him, whether he is to be tried as a wholesale or a retail dealer in tobacco, or whether the prosecution relies on a single sale or many sales. The evidence in a prosecution for this offense must show that it was the business of the party charged to sell or offer for sale tobacco, etc. Act March 1, 1879, § 4. The affidavit should have stated that he "carried on the business," and, failing to do this, the information depending upon it must he quashed.
UNITED STATES 'D. SCOTT.
«(Jirouit (Jourt, S. lJ. Ohio. October 20,1885.)
CRIMINAL LAW-EvIDENCE-WITHHOLDING PENSION-REv. ST. EVIDENCE OF BEING A PENSIONER INADMISSIBLE.
Parol evidence that the person from whom the defendant withholds the money is a pensioner of the United States is not admissible on an indictment under section 5485 of the Revised Statutes. Neither are the entries in the local pension agent's books, copied from the certificate of the pensioner, admissible to prove the fact that the person named is the pensioner. Whether the certificate itself is competent, not decided. Neither is it competent to prove by parol that the checks received by the government's witness were forjensions due to her. The checks themselves, or legally exemplified copies 0 them, should be produced.
SAME-PENSION CERTIFICATE-LoCAL PENSION AGENT'S BOOKS.
SAME-PAROL EVIDENCE OF PENSION CHECKS INADMISSIBLE.
Indictment. The defendant was placed on trial for withholding $800 of the pension money of Mary Martin, in violation of section 5485 of the Revised Statutes of the United States. She was placed on the witness stand and detailed the circumstances, showing that the defendant, who was her son.in.law, obtained her "checks" from the post·office, and, going together to the bank, she signed them and he got the money. They then went to a hotel, and he retained the $800, pay. ing her the balance. She was asked if these were her "pension checks," and said, "Yes." She was further asked how she "became a pensioner," and replied that her "son was in the army," etc. The defendant objected to this testimony, and gave notice that he would move to exclude it as incompetent, and directed a cross-examination tending to show that this transaction was an advancement to him as part of a legacy to be given by Mrs. Martin's will, etc. This witness having retired, the district attorney, without further proof, closed the case for the government, and therenpon defendant declined to forward any evidence, closed his case, and moved the comt to inskuct the jury to find for the defendant, on the ground that there was no competent proof that the prosecuting witness was a pensioner, or that the money belonged to the pension fund. After argument, the court having intimated that the evidence was incomplete without further proof of those facts, the district attorney asked leave to introduce the local pension agent and his books, and was allowed to do this, subject to defendant's objections which were reserved. The local agent then produced a book kept by his predecessor in office, in which, among others, appeared the name of Mary Martin as a pensioner, the num· ber and date of her certificate, the amount of pension, etc., in col. nms ruled for the purpose of showing these particulars respectively. The agent testified that when a certificate of pension is granted it is first sent to the local agent, who makes the entries of these particu-
pension office furnished me by the local agent, precisely how the adjudication that one is entitled to a pension is made, nor precisely what record there may be of that adjudication in the office of the commissioner of pensions. Section 4692, Rev. St., provides.
"Every person specified in the several classes enumerated in the following section, who has," etc., "shall, upon making due proof of the fact. according to such forms and regulations as are or may be provided in pursuance of law, be placed on the list of invalid pensioners of the United States, and be entitled to receive," etc.
Subsequent sections provide for the payment of these pensions to the widow and children or certain dependent relatives of the pensioners who die, including the mother. These latter sections add to the classes of facts to be ascertained by some official judgment in this department, to which the duty of passing upon them has been assigned. First, there must have been a soldier or sailor disabled in, or in consequence of, his military service; and, secondly, a relationship to him established, and he must be placed upon "a list." This much of an adjudication is provided for by statute, and no doubt there is a carefully preserved and accurately kept record of the whole proceeding and a more or less formal adjudication and judgment on the facts, of the distinct nature of which we are not advised. But nothing is plainer than that the interior department is a special tribunal of judicial or quasi judicial powers appointed by law to ascertain and determine all the facts, and to adjudicate and allow a peni sion to the party entitled, and that its action is final and conclusive. i This was long since decided, in 1849, under our old pension laws, as to other departments charged with similar duties, in the case of Stokely v. De Camp,2 Grant, Cas. 17. Also under our new pension laws, in the case of U. S. Schindler, 10 Fed. Rep. 547,548. We cannot retry the question, etc., whether anyone is or is not a pensioner in a proceeding like this, either as a matter of prosecution or defense. This is also a general principle applicable to similar tribunals established by congress. Comegys v. Vasse, 1 Pet. 193; Frevall v. Bache, 14 Pet. 95. In the nature of the case we cannot take Mrs. Martin's judgment as to the fact whether her son was a penflioner, or she a pensioner by representation through him. If we had jurisdiction to determine the necessary fact, we should be required to take proof as to the circumstances, and see whether the exact conditions prescribed by the acts of congress exist. To .substitute Mrs. Martin's judgment that they exist for proof of the circumstances themselves, would be itself a violation of the rule we are considering, even in the view that they can be proved here by parol at all. Manifestly, the best evidence is the record of the proceeding as it rests in the interior department, and its adjudication thereon. Congress has provided, in the most ample way, for the use of these records, and all records of the executive departments, as evidence in the courts, by enacting that "copies of any books,
reo.Jrds, papers, or documents in any of the executive departments, authenticated under the seals of such departments, respectively, shall be admitted in evidence equally with the originals thereof." Rev. St. § 883. I do not say that the original record, or an authenticated copy of it, under this section, is the only competent proof of the fact that one from whom money is withheld is a pensioner, but only that this is the best evidence, and that, as long as that exists, certainly parol proof cannot be substituted for jt. The rule under consideration does not always require the best, and it may be that the certificate issued to the pensioner would, if produced, answer the requirements of the rule against inferior or secondary evidence. I do not feel called on to decide that question, and especially reserve it until it arises. Here it has not been produced or offered in evidence. I do not wish to be misunderstood on this point. Ordinarily, a certificate of a fact does not stand as proof of it unless made so by a law especially enacted to that end; as, for example, the certificate of a discharge in bankruptcy. It used to be that the discharge could only be proved by producing the record, or a certified copy of it; but congress, seeing the inconvenience, provided that the certificate of discharge should suffice, and this is often done for similar purposes. I do not find any provision in these pension laws, or the regulations,' made in pursuance of their authority, for a certificate to the pensioner, except that the commissioner is required to forward to the local agent "the certificate granted in any case." Rev. St. § 4768. Whether this is the original adjudication, and competent as an original document to prove the facts certified, or merely a formal certificate of some other adjudication, for use only in the further administration of the law in the department itself and among its own officials, we need not now determine; and I should not, as at present advised about the facts as to the course of business in giving the certificate, be prepared to determine it. It seems to have been held to be p7'imafacie evidence in Mrs. Alexander's Case, 4 Ct. C1. 218. These remarks are pertinent only because the government's counsel has introduced the local agent's books, the entries in which were taken from the pension certificate sent to him under section 4768 of the Revised Statutes. Certainly this is secondary evidence in its relation to the certificate, if we concede that the certificate is itself competent as primary evidence, which we do not decide. I find no statute, or regulation having the force of a statute, by which these entries in the local agent's book can be given the force and effect of an original record kept by law and proving itself as such when supported by the testimony of its custodian. It cannot be substituted for the certificate from which it was made up, even if that may be substituted for an exemplified transcript of so much of the record at Washington as will prove the necessary fact that this lady was a pensioner. I have found no direct case on the point; but in Wayne v. Winter, 6 McLean, 844, a similar ruling was made in reference to the patent laws. And
a somewhat analogous, though not at all similar, ruling was made in Lindsay v. Cusimano, 12 Fed. Rep. 503, 504, in regard to the records of the weather in the signal service office. The objection as to the parol proof in relation to the pension checks is just as well taken, and for the same reason. Either the original checks should have been produced and proved, or authenticated copies of them, under section 882 of the Revised Statutes, before cited, or other record evidence showing that it was pension money, sent to her. Congress every year appropriates an immense fund to pay pensions, and it is guarded from peculation and plunder by the very statute under which this defendant is indicted, among others enacted for a like purpose. This offense is aimed solely at withholding money belonging to that fund. The identity of the fund is an essential fact to be proved. Section 4765 directs how the check shall be drawn, and, when paid, that check is in possession of the government, and proves itself, and cannot be proved by parol. It establishes the identity of the money, and there is a peouliarity about the moneyessential as an element in the offense; therefore it somewhat differs from ordinary checks, and is of more importance as proof than a bare check for so much money indifferently. We cannot take Mrs. Martin's judgment as to this important fact any more in this matter than the other which we have considered. And now, gentlemen of the jury, it must be a matter of regret to you, as to the court, that this prosecution must fail in this way. We reasonably know that this old lady is a pensioner, and that this was pension D}oney; for it is wholly unlikely that she could have derived the money from any other source than that she says she did; and if she tells the truth, and the defendant could not prove otherwise, he is certainly guilty, and deserves the severe penalties of this statute. But this case well illnstrates our duty as court and jury to him. We are not here to convict him because we believe, or feel reasonably sure, that he is guilty, but to give him a fair and impartial trial according to law, and to stand by him, and see that, against his objection, he shall not be convicted upon other than competent proof of the facts alleged against him, and necessary to constitute his offense. We have no higher duty than that,-we perform it as readily for the defendant as for the prosecntion. The government has failed to produce the proof of this defendant's guilt, ample as its facilities are for that purpose, and he is entitled to an acquittal at your hands. His anxious but intrepid counsel would not put him in the peril he is in if we should determine this motion against him unless they had confidence that the court and jury would imp3>rtially give him the benefit of his advantage over the government, if it be one. He is entitled to it, and we accord it to him. Verdict "not guilty," and defendant discharged.
CO. V. CALIFORNIA ELECTRICAL WORKS.
UNITED NICKEL CO.
CALIFORNIA ELECTRICAL WORKS.
(Circuit Court, D. California. October 31, 1885.)
P ATENTS-NICKEL PLATING-INFRINGEMENT.
The evidence examined, and held, that the letters patent granted to Dr. Adams, August 4,1869, (No. 93,157,) for nickel plating were for a new and use· ful invention. and valid; and also that they had been infringed.
In Equity. The opinion states the facts. Scrivner cf; Boone, for complainant. Wright <.t Cormac and Wilson cf; Wilson, for defendant. SAWYER, J., (orally.) In this case it is objected on the part of the defendant that the complainant fails to make out a case in three par· ticulars: "First, that the complainant is estopped from enforcing its right of action, if any such existed, by a course of conduct which amounted to an implied license to the defendant to pursue the work for which it has been sued; second, that the complainant bas not proved with reasonable certainty its allegation of infringement by defendant; third, that the matter covered by the letters patent was not novel or useful at the time of its alleged invention." I have carefully considered the testimony, and am satisfied that the complainant has proved the infringement as alleged; and that both the first and fourth claims have been infringed. I therefore decide that point against the defendant. Third, with reference to novelty and usefulness, that the invention is useful does not admit of doubt. As to its novelty, that is a question that has been litigated by the ablest patent lawyers, before the most experienced judges in patent laws in the Union, for the last 15 years, in case after case. In every instance, so far brought to my attention, the patent has been sustained upon the point of novelty. Of course, those decisions. are not binding on this court as to the facts in this case, but they indicate the views of other courts upon similar states of facts, which have been repeatedly fully presented and consid· ered. This case, however, must be decided upon the testimony introduced here. There is an effort, and the only substantial effort made to defeat the patent upon the question of novelty, to show that one Dr. Boettger, somewhere before 1843, made the invention and described how nickel plating could be done, and that his process was described in a book published as early as 1843, and in subsequent editions, though no witness had seen the book or knew of its date except from hearsay and the date inscribed on the booll;, it being a German publication, until some time in 1869, and the date of this patent is August 4, 1869. Some experiments have been made by scientific gentlemen to show that it is practicable to nickel plate by the use of Dr. Boettger's solution, and proceeding in accordance with his directions. Dr. Boettger's process could not well have been overlooked in the trial